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Expert excluded in dead body case

The court will grant the prosecution’s motion in limine to exclude opinion testimony from defendant’s expert because it is speculative and therefore is inadmissible.


“[T]he alleged facts include [defendant] Shaw having cleaned the body with bleach, cleaned the decedent’s finger nails, secured a shower curtain and duct tape, wrapped the body in the shower curtain and affixed the duct tape, and kept the air conditioner setting low enough to cause ­condensation in the room where the body was kept for three days, a period of time well beyond the moment Shaw found the body.”

Shaw has been charged under Code § 18.2-323.02 with maliciously concealing a dead body. “The statute has two intent requirements, a malicious intent, and the intent to prevent detection of an unlawful act or to prevent the detection of the death or the manner or cause of death (hereinafter referred to as the ‘concealment intents’).

Shaw has identified an expert witness, Dr. Boyd. A recently enacted statute, Code § 19.2-271.6, “provides for the potential admissibility of evidence of a defendant’s mental condition that tends to show lack of intent at the time of the alleged offense.”

The prosecution has filed a motion in limine to exclude Boyd’s report on Shaw’s mental condition. Boyd testified at the motion hearing.

“At the conclusion of her testimony, Dr. Boyd opined that a combination or Shaw’s mood and trauma symptoms impaired his judgment during the time period that the offense may have occurred. …

“In her report and during her testimony when the motion in limine was heard, she did not opine as to which element of intent, as provided in the applicable criminal statute, of Shaw’s judgment was impaired.”

After the hearing, Shaw submitted Boyd’s supplemental report, which stated that he “has serious mental illness.” Boyd, in her supplemental report, offered opinion testimony that detailed Shaw’s mental state.

“Again, Dr. Boyd did not render an opinion for the application of Shaw’s mental illness to the distinct, separate statutory intent elements.”

Parsing the statute

“There is no question Dr. Boyd opined that Shaw suffers from mental illness. The question the Court is tasked with is whether the proffered evidence is admissible under Virginia Code § 19.2-271.6. …

“The statute declares the described evidence as relevant. Relevant evidence is defined as evidence ‘having any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence.’ …

“Further on, the statute provides that the described evidence must ‘otherwise’ be admissible. The statute does not provide that the evidence is relevant if it is otherwise admissible. Instead, as worded, there may be rules of evidence to apply to determine admissibility, but not relevance, under R 2:401.

“Upon an initial reading of the statute, it appears that it disregards the quality of the evidence, so that any expert opinion, no matter how baseless or speculative, would be relevant. If that were the case, the well-settled term ‘relevant’ would not have been used, as ‘relevance’ has one meaning. …

“An expert opinion that is speculative is not relevant by definition. The Court finds the wording of the statue is ambiguous and internally inconsistent. …

“[T]he Court finds that the General Assembly intended to provide that the described evidence is relevant to the subject matter (an accused’s intent), and not that all such proffers have any tendency to make the existence of any fact in issue more probable or less probable than it would be without the evidence, as a proffer that is mere speculation would not aid a trier of fact.

“Speculative evidence does not have a clear definition in rules of evidence or the common law but appears to carry its common definition of evidence that is theoretical rather than demonstrable, or is an opinion proffered as true upon insufficient evidence, thus, not making a fact more or less probable.”


“Dr. Boyd was aware the statute contained two elements of intent, but she did not state her opinion as to which element; instead, she spoke in the disjunctive, as if the trier of fact could then make a choice between a tendency to lack malicious intent or the concealment intent.

“If she is not certain, it begs the question of which element the jury is to select. The jury must not be placed in a position where they are guessing which mens rea requirement is impacted by Shaw’s mental illness.

“Expert testimony may be admissible when ‘the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.’ … Expert testimony that is inconclusive is speculative, thus, not relevant. The General Assembly did not intend to declare speculative evidence relevant. …

“[I]t is unclear whether Dr. Boyd’s opinion goes to the malicious intent requirement or the body concealment mens rea requirements of Virginia Code § 18.2- 323.02, or the time period.

“These separate missing variables would require a jury to speculate which of Shaw’s numerous mental health symptoms impaired the differing intent requirements and whether they did so in a manner significant enough to negate both intent requirements under the statute.

“Dr. Boyd’s opinion, as presented by the defendant, is speculative, thus, inadmissible.’

Commonwealth v. Shaw, Case No. CR21000393-00, March 9, 2022, Arlington County Circuit Court (Fiore). VLW 022-8-018, 9 pp.

VLW 022-8-018

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